The recent decision of the Court of Appeal in A & B v C & D & E  EWCA Civ 409 confirms that s44(2)(a) of the Arbitration Act 1996 provides the Court with the discretion to compel a non-party to a foreign arbitration to give evidence. This decision is timely. Global travel restrictions are likely to continue for some time in some shape or form, as a result of COVID-19. It may be that more witnesses than before are unwilling or unable to travel. If, in addition, it becomes increasingly commercially unviable to provide for the physical attendance of witnesses in foreign arbitrations, evidence by deposition or other means may become the new norm.
You can read Niraj Modha’s full post on our Commercial, Construction & International Arbitration Blog here.